S.J.C. Order Dismissing Petition for Discipline entered by Justice Sosman on August 30, 2004.1

MEMORANDUM OF DECISION

In this consolidated bar discipline case, the hearing committee found that none of the alleged violations against either respondent had been proven by bar counsel, and therefore recommended that both petitions for discipline be dismissed. On appeal by bar counsel, the appeal panel unanimously recommended that the petitions for discipline be dismissed, and that recommendation was unanimously adopted by the Board of Bar Overseers (board). Unwilling to accede to that determination, bar counsel sought the filing of the present information. For the following reasons, I agree with the board that both petitions are to be dismissed.

1. Background. The petitions for discipline stem from the allowance of a defendant's motion for new trial in a murder case, that new trial being granted on grounds of prosecutorial misconduct in failing to disclose an agreement with one of its witnesses, and in taking no action when the witness testified that the sole motivation for his testimony was his concern for the victim (who was the witness's grandfather), and ineffective assistance of defendant's trial counsel. On the Commonwealth's appeal, the court affirmed the motion judge's decision to grant defendant a new trial. Commonwealth v. Hill, 432 Mass. 704 (2000). The petition for discipline restated as ethical violations the same failure to disclose and failure to take action on the part of the trial prosecutor (respondent Diane Dillon) and the same shortcomings on the part of trial counsel for defendant Hill (respondent Michael Joseph). The complex history of the Hill matter (set forth in the court's opinion, with subsequent developments set forth in the hearing committee's report) will not be repeated here. Suffice it to say that, after this court had affirmed the allowance of Hill's motion for new trial, the Commonwealth obtained a transcript of the codefendant's trial, and that transcript revealed that an affidavit on which the motion judge (Sweeney, J.) had relied in concluding that no disclosure had been made was patently erroneous. Armed with that transcript, the Commonwealth sought reconsideration of the ruling on the underlying motion, but Judge Sweeney denied the motion for reconsideration, and the Single Justice denied the Commonwealth's request to appeal that denial of reconsideration.

Based on that history, bar counsel urged that the doctrine of issue preclusion prevented respondent Dillon from contesting the factual allegations of the petition, i.e., that she had failed to disclose to defense counsel the Commonwealth's agreement with one of its witnesses, and that she had failed to rectify that nondisclosure even when the witness testified in a manner that suggested that his motivation for testifying had nothing to do with any charges pending against him. The Chair of the board disagreed, determining that the fact of the Commonwealth's agreement with the witness and Dillon's obligation to disclose that agreement (a point Dillon did not contest) had been established, but that it would be unfair to preclude Dillon from litigating the central question of whether she had disclosed that information to Hill's counsel and whether the witness's testimony about his motivations should have prompted any further action on Dillon's part. After a lengthy evidentiary hearing on the matter (more lengthy and detailed than that presented to Judge Sweeney), the hearing committee found that Dillon had made the requisite disclosure of the agreement, that the witness himself had not testified falsely about his motivation for testifying, and that Dillon therefore had not committed any ethical violation.

With respect to Joseph (as to whom bar counsel had not sought issue preclusion), the hearing committee credited his explanations as to the strategic decisions he had made at trial (e.g., his explanation as to why he had not called a particular witness, and why he had cross-examined the cooperating witness in the manner he had), and thus found no dereliction of duty with respect to his representation of Hill. Bar counsel also alleged that Joseph had, during the course of the proceedings on the motion for new trial, supplied inconsistent testimony under oath (in an affidavit and in testimony before Judge Sweeney) with respect to what had and had not been disclosed to him by Dillon. On the theory that both versions could not be correct, bar counsel alleged that Joseph had made false statements under oath. However, the hearing committee credited Joseph's explanations as to the ostensible inconsistencies between his prior statements, and therefore found that neither statement was knowingly false.

Before the appeal panel, bar counsel again urged its theory of issue preclusion with respect to the petition against Dillon, and, as to Joseph, again argued that his two statements under oath could not be reconciled. The appeal panel affirmed the Chair's earlier decision with respect to issue preclusion, agreeing with the Chair that it would be fundamentally unfair to preclude Dillon from litigating the issue of whether she had made the requisite disclosure to Joseph and whether she had been obliged to take any further action in light of the cooperating witness's testimony. Having decided that Dillon was properly allowed to litigate the issue, the hearing committee's determination of the allegations against Dillon was purely a matter of credibility and the drawing of inferences on a very complicated and lengthy record. There was no basis on which to disturb the hearing committee's factual findings, all of which were supported by that record. With respect to Joseph, the hearing committee's decision to credit Joseph's explanations for his strategic decisions, and his explanations for what would (at least superficially) appear to be inconsistent statements under oath, similarly amounted to an assessment of credibility that would not be disturbed on appeal. Over bar counsel's objection, the board adopted the report of the appeal panel.

2. Discussion. a. Dillon. The only issue raised by bar counsel with respect to the decision to dismiss the petition against Dillon is the continued assertion that Dillon should have been precluded from litigating the issues that had been decided by Judge Sweeney in her ruling on defendant Hill's motion for new trial. The many reasons why it would be unfair to preclude Dillon from litigating those issues are thoroughly set forth in the appeal panel's report – indeed, it would be difficult to improve upon the thorough and insightful analysis provided by the Chair and the appeal panel with respect to that issue. Although issue preclusion may be invoked in bar discipline cases, see Bar Counsel v. Board of Bar Overseers, 420 Mass. 6, 10-11 (1995), the use of offensive issue preclusion against someone who was not a party to the earlier proceedings must be carefully considered, focusing primarily on whether it would be fair to the person against whom preclusion is now being sought. See Matter of Cohen, 435 Mass. 7, 15-17 (2001). Indeed, fairness is the decisive consideration in assessing whether to permit the use of offensive collateral estoppel. Id. at 16-17, and cases cited.

Here, Dillon was not a "party" to the earlier proceedings on Hill's motion for a new trial. Although she was clearly affiliated with a party (the Commonwealth), she did not represent the Commonwealth at the hearing before Judge Sweeney – Dillon was a witness, and a different assistant district attorney presented the Commonwealth's opposition to Hill's motion. Dillon did represent the Commonwealth on appeal from Judge Sweeney's ruling, but the critical factual findings that bar counsel sought to impose by way of collateral estoppel had obviously been made by that time. Beyond the specific details of Dillon's role in the proceedings before Judge Sweeney, the appeal panel correctly observed that it would be problematic from a policy perspective to apply issue preclusion in this fashion against assistant district attorneys in bar discipline proceedings, as doing so would potentially undermine an assistant district attorney's overriding obligation to seek just results in criminal cases.

The appeal panel also considered (as had the Chair) the peculiar fact that, in these proceedings, Judge Sweeney's original findings had been based on what had since been shown to be an undisputably false premise, namely, that a failure to make any disclosure had also occurred with respect to the codefendant's severed trial. The transcript of the codefendant's trial, not presented until after Judge Sweeney's original ruling and the affirmance of that ruling, revealed that, contrary to the codefendant's attorney's affidavit (on which Judge Sweeney had relied), disclosure had been made on the record in that case. Moreover, Hill's trial counsel, attorney Joseph, testified that he had been advised of the Commonwealth's agreement to give the witness some "consideration" for his cooperation, and further testified as to why he had not cross-examined the witness directly on that issue. No issue preclusion was being (or could be) sought with respect to bar counsel's allegations against Joseph, and the hearing committee was thus going to hear evidence on and make findings concerning precisely what Joseph did or did not know about the Commonwealth's arrangement with the witness, and would have to make findings on that issue as part of its assessment of the alleged defects in Joseph's handling of the Hill trial. Indeed, if issue preclusion were to be enforced against Dillon in the manner requested by bar counsel, the board would be put in the difficult position of imposing very serious discipline against Dillon for her ostensible nondisclosure of the agreement, despite the hearing committee's finding (in the consolidated Joseph matter) that Joseph had been advised of the agreement.

As the hearing committee's findings make clear, viewing this matter on a more complete record, a record that demonstrates (inter alia) that disclosure was made in the companion case, potentially sheds a very different light on Dillon's conduct. Where she was not a party to the prior proceedings, and did not control the presentation of evidence in those proceedings, there was no error in the determination by the Chair and the appeal panel that it would be fundamentally unfair to preclude Dillon from litigating the issue of her alleged misconduct on the more complete record that was by then available.

Indeed, what is troubling on this record is bar counsel's own persistence in pressing a theory of issue preclusion that has been shown to be so demonstrably unfair. Just as we expect prosecutors in criminal cases to pursue an overarching goal of justice, and not just the zealous pursuit of convictions, I expect bar counsel to pursue an overarching goal of justice, and not just the zealous pursuit of discipline. Reasonable minds could view the evidence against Dillon in different ways. What is undisputable, however, is that in a proceeding where her license to practice law was at stake, Dillon was entitled to her own fair opportunity to confront the evidence against her, and to update that evidence with potentially critical information that had not been presented during the prior proceedings.

As the appeal panel correctly noted (and bar counsel concedes), once the matter of issue preclusion has been decided in Dillon's favor, there is no basis to overturn the findings and conclusions rendered by the hearing committee. The petition for discipline against Dillon was therefore properly dismissed by the board.

b. Joseph. At no time did bar counsel seek to enforce any form of issue preclusion against Joseph, as he was neither a party to nor even arguably in privity with any of the parties to the proceedings on Hill's motion for a new trial. As with respondent Dillon, there is no basis to overturn the hearing committee's decision to credit Joseph's explanations as to why he presented Hill's defense in the manner he did. I also agree with the appeal panel's observation that, even if those explanations had not been credited, not all "ineffective assistance" of counsel translates to an ethical violation, and the shortcomings alleged here would not rise to the level of an ethical violation.

Bar counsel, however, points to what he claims are inherently irreconcilable inconsistencies between an affidavit that Joseph signed (in which he stated that he had received no "discovery" concerning "any promises, rewards or inducements" to the witness) and his subsequent testimony at the hearing on Hill's motion for a new trial (during which he testified that he had been told by the prosecutor that the witness's cooperation with the Commonwealth "would be considered" and would be made known to the judge at the witness's sentencing). Based on the other evidence at the hearing, and on the hearing committee's assessment of Joseph's credibility, the hearing committee determined that Joseph had not knowingly made a false statement in either his affidavit or his testimony. The affidavit (prepared by Hill's new counsel to be submitted in support of the motion for new trial) was premised on the assertion then being made by the witness, namely, that the understanding with the Commonwealth was that his (very serious) drug charges would be dropped entirely in exchange for his cooperation in the two murder trials. Joseph had never received any written response to his request for discovery of "promises, rewards and inducements" made to the Commonwealth's witnesses, and he had not been advised of any agreement to drop the charges against this particular witness in exchange for his testimony. On the motion for new trial, Hill's counsel was taking the position that the agreement with the witness was that the charges would be dropped, and counsel's conversations with Joseph on the subject, and counsel's drafting of the affidavit that Joseph signed, were made in connection with trying to demonstrate that defense counsel had never been made aware of that agreement. When questioned at the hearing about what he had been told orally concerning the Commonwealth's arrangement with the witness, Joseph recalled being told (by either Dillon or another assistant district attorney) that the witness's "cooperation would be considered, and they'd make it known to his sentencing judge." Having credited Joseph's testimony concerning the differing contexts of the affidavit (bolstered by testimony from Hill's lawyer, who had discussed the matter with Joseph and drafted the affidavit in question), the hearing committee determined that Joseph had not knowingly made any false statement in either the affidavit or in his testimony before Judge Sweeney. That conclusion, inextricably linked to the hearing committee's assessment of credibility and the drawing of inferences, is not to be disturbed. Accordingly, there was no error in the board's decision to dismiss the petition for discipline against respondent Joseph.

ORDER

For the reasons set forth above, it is hereby ORDERED that the petitions for discipline against respondent Diane Dillon and respondent F. Michael Joseph be DISMISSED.

Martha B. Sosman, Associate Justice
Supreme Judicial Court

DATE: August 30, 2004

1 The complete Order of the Court is available by contacting the Clerk of the Supreme Judicial Court for Suffolk County.